There’s nothing at odds with Strickland in this.

BTW, as a habeas practitioner for the last 12 years, I fully understand the hurdle required for an evidentiary hearing in federal habeas corpus — and they are not easy to hurdles.

Regardless of how high the hurdles are:

Show me the rule that says the petitioner has the burden to satisfy the Strickland prejudice standard in order to get an evidentiary hearing on a Strickland claim.

As you must know as a habeas practitioner, the second prong of 2254(e) only applies if the petitioner “fails the develop the factual basis” of the claim in state court, which is something entirely different from what Strickland requires. No?

The majority then sidesteps the absence of any actual prejudice resulting from Johnson’s consent to the closure—and with it, the plainly stated actual-prejudice requirement of Strickland v. Washington, 466 U.S. 668(1984)—by holding that Johnson need not show any prejudice at all in support of his
ineffective-assistance-of-counsel claim.

Wong clearly held the majority’s position was wrong.

Oh, and as I noted in the FIRST comment, the panel appears to have shifted the prejudice burden for IAC claims — something Wong expressly criticized the Ninth Circuit for doing as being contrary to Strickland.

Nobody shifted the Strickland burden because nobody held that there was ineffective assistance of counsel under Strickland. All the appellate court did was remand to the district court for an evidentiary proceeding.

If you look at the AEDPA provisions, you’ll see that the standards for granting evidentiary hearings are not the same as the standard for satisfying Strickland.

Now, I don’t know all the ins and outs of what this particular petitioner did in the state courts to try to develop the factual basis for this claim (or whether it was even possible, given that he’d have to go outside the record), but I DO at least know that this is what matters for AEDPA purposes, not the Strickland burden of proof.

This one gets reversed.

You don’t have to be overly creative to make someone a witness to SOMETHING dealing with the case. So yes, there might be a “Motion to Quash,” but a smart prosecutor could win the motion.

What I don’t understand is why the prosecution didn’t slap a subpoena on the family members and ask that they all be excluded as trial witnesses.

That would be abuse of process, a fact that would become eminently clear to the judge as soon as the prosecutor filed a response to their motions to quash, if not sooner.

I’ll bet you this opinion stays on the books. Keep in mind that the appellate court is not granting the petition. After all, the court did not hold that the defense attorney’s actions constituted ineffective assistance of counsel. All they are doing is remanding to the district court for an evidentiary hearing to develop the record on the factual issues underlying the claim.

I still haven’t heard anybody explain why it’s such a terrible idea to do so.

He could decide whether or not he wanted them to actually testify at a later point.

BTW, I agree with David Nieporent’s analysis of the case, and I suspect this ruling will not survive.

I’m responding to your argument: you claimed no court could hold that closure of the court was justified while also finding that “if the courtroom weren’t closed, the witnesses would have been too scared of defense retaliation to testify.” That’s an exact quote.

That implies that if one or more defense witnesses are too scared of defense retaliation to testify, closure is necessarily justified. (And mind you, that says nothing about whether the witnesses’ fear is objectively justified, because the court here could well find that it wasn’t.)

Can you point me to a single appellate court that made such a holding?

Mahan Atma: BTW, I reject the proposition that someone has to have “something to lose” to legitimate their constitutional claim.

Who said anything about that? You claimed that because he’s willing to have a hearing now, such hearing must not have been risky, so it must have been error by his attorney. But the fact that it’s not risky now doesn’t mean it wasn’t risky then.

Mahan Atma: Can you point to a single case in which an appellate court held that the prosecution could close the courtroom — even partially close it — on the sole basis that one or more witnesses were afraid to testify?

The sole basis? Surely the fact that the witnesses were afraid to testify because other witnesses had been murdered is actually two facts (or three, since two witnesses had been murdered), not one, so it isn’t actually a “sole” basis.

The burden isn’t as heavy as you seem to think. (Particularly since the judge did not actually close the courtroom at all, but simply briefly excluded a couple of people.) The prosecution does not need to prove that the defendant had some role in it. That’s not the standard. The reason for partially closing the courtroom was not because of the murders, but because the surviving witnesses were scared to testify because of the murders. A step removed.

Can you point to a single case in which an appellate court held that the prosecution could close the courtroom — even partially close it — on the sole basis that one or more witnesses were afraid to testify?

But the Michigan Court of Appeals was discussing Strickland, not Waller, and the Strickland standard is prejudice, not structural, so the MCoA didn’t misapply any phrase.

No, the Sixth Circuit is basically pointing out that if the defense attorney had objected, the standard for prejudice would be under Waller, not Strickland.

Mahan Atma: He was convicted for the murder of Carlos Davis, not the two witnesses.There’s no statute of limitations for murder, so he could still be charged in the latter cases. (Note that someone else was already convicted for the murder of Crowe, but Johnson could certainly be charged with conspiracy.) I don’t know how likely it is that an additional conviction would affect the prison term he actually serves, but he was “only” sentenced to 35–60 for the Davis murder, so it could at least hypothetically lengthen his sentence — or at least worsen the conditions in which he is kept. So no, I don’t think he has “nothing to lose”.

If the government could prove b.a.r.d. that he was guilty of murdering the witnesses, they’d have done it; they’re not going to gain a conviction based on an evidentiary hearing (*) on a six-year old case. Come on; nobody is going to not appeal a conviction carrying a certain 35-60 year sentence on the off chance that it lengthens his potential maximum sentence if he loses. He’s got nothing to lose. (Worsen the conditions? To what?)

(*) Which, as I noted above, would not be about whether he murdered the witnesses.

Mahan Atma: The prosecution has a heavy burden to get the courtroom closed. The simple fact that the witnesses were murdered doesn’t cut it unless there’s sufficient evidence the defendant and/or someone he is associated with had some role in it.

The burden isn’t as heavy as you seem to think. (Particularly since the judge did not actually close the courtroom at all, but simply briefly excluded a couple of people.) The prosecution does not need to prove that the defendant had some role in it. That’s not the standard. The reason for partially closing the courtroom was not because of the murders, but because the surviving witnesses were scared to testify because of the murders. A step removed.

Mahan Atma: What they are saying is that the Michigan Court of Appeals misapplied the phrase: The defense attorney’s decision may well have been “outcome determinative”, because if he had decided to object, and the trial court improperly overruled the objection, it would have been structural error — prejudice would be presumed, and the conviction would have been reversed.

If, if, if. If he had decided to object, and if the objection was overruled, and if the overruling was improper. But the Michigan Court of Appeals was discussing Strickland, not Waller, and the Strickland standard is prejudice, not structural, so the MCoA didn’t misapply any phrase.

Uh, what? You may have missed this, but the defendant was convicted. It’s not risky now; he has nothing to lose.

He was convicted for the murder of Carlos Davis, not the two witnesses. There’s no statute of limitations for murder, so he could still be charged in the latter cases. (Note that someone else was already convicted for the murder of Crowe, but Johnson could certainly be charged with conspiracy.)

I don’t know how likely it is that an additional conviction would affect the prison term he actually serves, but he was “only” sentenced to 35-60 for the Davis murder, so it could at least hypothetically lengthen his sentence — or at least worsen the conditions in which he is kept.

So no, I don’t think he has “nothing to lose”.

Mahan Atma: The defendant is now asking for that hearing, so he must not think it’s so risky. And that’s precisely the hearing the appellate remanded to the district court with instructions to conduct:

Uh, what? You may have missed this, but the defendant was convicted. It’s not risky now; he has nothing to lose. That has nothing to do with whether it was risky at the time. That’s the problem with judges second-guessing trial strategy. Ineffective assistance is always a heads-I-win-tails-you-lose situation: take a gamble, and if it works, great, and if it doesn’t, you have an issue for appeal, where some appeals court judges will buy anything.

Also, if an open courtroom is such an important fair trial right, I wonder if prejudice doesn’t have to be presumed at some level.

The discussion about prejudice is confusing because there are two different standards, arising under two different claims.

If the defense attorney had objected at trial, and the court improperly overruled him, then prejudice would be presumed for the purposes of evaluating that claim on appeal or habeas.

However, the defense attorney waived the objection at trial. Now the second type of claim arises: That the defense attorney was ineffective for failing to object. For that type of claim, under Strickland, there must be some showing of prejudice.

The fact that the majority pretends not to understand what “outcome determinative” means is rather strange.

What they are saying is that the Michigan Court of Appeals misapplied the phrase: The defense attorney’s decision may well have been “outcome determinative”, because if he had decided to object, and the trial court improperly overruled the objection, it would have been structural error — prejudice would be presumed, and the conviction would have been reversed.

I guess it’s possible that I am confused, but I’m not confused about that; I’m aware of that. How is that relevant to my point? As Kethledge points out, it did come out at sentencing; it would have come out at a hearing on whether to close the courtroom, if the defense opposed the prosecution’s request.

It doesn’t matter; the point is that regardless of what might have happened at trial, the “ammunition from the same lot” evidence is too weak for Kethledge to hinge his argument on it now.

No; he’s relying on the fact that two witnesses against the defendant were murdered. You seem to think that the prosecution has to prove that the defendant is guilty of their murders before the court can be closed.

The prosecution has a heavy burden to get the courtroom closed. The simple fact that the witnesses were murdered doesn’t cut it unless there’s sufficient evidence the defendant and/or someone he is associated with had some role in it.

The only fact in “evidence” is to support that claim is the “evidence” introduced at the sentencing hearing that the ammunition came from the same lot. Again, how big was the lot? What was the availability of that ammunition to other people in the area? What is the quality of the forensics underlying this evidence?

I would bet you dollars-to-donuts that none of that is on the record, because it was a fact introduced at the sentencing hearing, not the trial.

Mahan Atma: You’re confused. Read the opinion: The “evidence” that the ammunition came from the same lot was introduced at the defendant’s sentencing hearing.

I guess it’s possible that I am confused, but I’m not confused about that; I’m aware of that. How is that relevant to my point? As Kethledge points out, it did come out at sentencing; it would have come out at a hearing on whether to close the courtroom, if the defense opposed the prosecution’s request.

That’s the “evidence” Kethledge’s dissent relies on.And it’s the only fact he is relying on.

No; he’s relying on the fact that two witnesses against the defendant were murdered. You seem to think that the prosecution has to prove that the defendant is guilty of their murders before the court can be closed.

It would not have been ludicrous to insist on such a hearing. But it would have been risky, and there was no clear benefit to the defendant regardless of outcome. So it was quite sensible trial strategy not to ask for such a hearing — identifiable risk for no identifiable gain — and certainly not constitutionally deficient representation not to press the issue.

Again, you’re confused. I’m talking about holding an evidentiary hearing in the federal district court in which the defendant filed his habeas petition.

The defendant is now asking for that hearing, so he must not think it’s so risky. And that’s precisely the hearing the appellate remanded to the district court with instructions to conduct:

For the reasons stated above, we VACATE the district court’s judgment denying habeas relief and REMAND for an evidentiary proceeding to determine whether the trial closure was justifiable, whether trial counsel was constitutionally ineffective for failing to object, and whether the cause and prejudice components of Johnson’s public trial claim can be satisfied.

My question to you is why you think it is “ludicrous” to do so ?

Certainly. But this wasn’t a trial. This was (or would have been) a hearing on whether to close the courtroom. Surely you’re not suggesting that the trial court would have — or should have — held a Daubert hearing on whether the ammunition actually came from the same lot, just to determine whether the witnesses were reasonable in fearing for their lives if they testified, just to determine whether to close the courtroom.

You’re confused. Read the opinion: The “evidence” that the ammunition came from the same lot was introduced at the defendant’s sentencing hearing.

That’s the “evidence” Kethledge’s dissent relies on. And it’s the only fact he is relying on.

The “same lot” as what? Oh, the same lot as the ammunition used to kill the victim.

How large was that lot? What if ammunition from that lot was sold in every gun store in Michigan? What would it prove that the ammunition came from the same lot, then?

These are the kinds of things that are not in the record. If they were, Kethledge would have mentioned them.

This is not the right case to argue the prejudice angle because the conduct was reasonable trial strategy. In a case where the Judge insists on closure, we can have the prejudice argument. I agree that if the judge errs in closing the trial in any significant way, prejudice should be presumed.

The colloquy between the majority and the dissent regarding the issue of prejudice is a bit difficult for me to follow. But while I’m not sure precisely what the petitioner was required to prove at this stage regarding prejudice, the most obvious point is not that the jury would have reached a different verdict had the defendant’s family been in the courtroom and everything else remained the same; the point is that if the judge hadn’t granted the request to close the courtroom, maybe those eyewitnesses wouldn’t have agreed to testify at all. I understand that no ethical lawyer wants to feel like he’s a party to intimidation of witnesses or anything like that, but it seems like defense counsel played ball with the prosecution a little too much.

Also, if an open courtroom is such an important fair trial right, I wonder if prejudice doesn’t have to be presumed at some level. After all, it’s always going to be difficult or impossible to establish that your trial would have had a different outcome if a given spectator had been allowed to observe. But doesn’t that effectively mean you can never vindicate your public-trial right once the trial has completed?

The whole point of having an evidentiary hearing in the district court is to resolve these factual unknowns. Why is it so ludicrous to ask that the district hold such a hearing?

It would not have been ludicrous to insist on such a hearing. But it would have been risky, and there was no clear benefit to the defendant regardless of outcome. So it was quite sensible trial strategy not to ask for such a hearing — identifiable risk for no identifiable gain — and certainly not constitutionally deficient representation not to press the issue.